United States v. Fabian-Penaloza ( 2019 )

FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT October 31, 2019
_________________________________
Elisabeth A. Shumaker
Clerk of Court
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v. Nos. 18-2177 & 18-2183
(D.C. Nos. 1:18-CR-02662-TM-1 &
INOCENTE FABIAN-PENALOZA, 2:18-CR-02736-TM-1)
(D. N.M.)
Defendant - Appellant.
_________________________________
ORDER AND JUDGMENT *
_________________________________
Before HOLMES, MURPHY, and CARSON, Circuit Judges. **
_________________________________
Defendant Inocente Fabian-Penaloza pleaded guilty to illegal re-entry in
violation of 8 U.S.C. § 1326(a). The illegal re-entry guilty plea also served as the
factual basis for the revocation of his supervised release in another case. The district
court sentenced Defendant to forty-five months’ imprisonment for illegal re-entry
and fourteen months’ imprisonment in the revocation matter, to be served
consecutively. Defendant now challenges these sentences on appeal.
*
This order and judgment is not binding precedent, except under the doctrines
of law of the case, res judicata, and collateral estoppel. It may be cited, however, for
its persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
**
After examining the briefs and appellate record, this panel has determined
unanimously to honor the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore
submitted without oral argument.
Defendant’s counsel, however, believes that any appeal relating to Defendant’s
sentences is destined to fail, and she therefore moves to withdraw as counsel under
Anders v. California, 386 U.S. 738 (1967).
The Supreme Court’s decision in Anders . . . authorizes counsel to
request permission to withdraw where counsel conscientiously examines
a case and determines that any appeal would be wholly frivolous. Under
Anders, counsel must submit a brief to the client and the appellate court
indicating any potential appealable issues based on the record. The client
may then choose to submit arguments to the court. The Court must then
conduct a full examination of the record to determine whether [the]
defendant’s claims are wholly frivolous. If the court concludes after such
an examination that the appeal is frivolous, it may grant counsel’s motion
to withdraw and may dismiss the appeal.
United States v. Calderon, 428 F.3d 928, 930 (10th Cir. 2005) (citations omitted)
(citing Anders, 386 U.S. at 744).
Neither Defendant nor the government has responded to counsel’s Anders
brief. Nonetheless, we have carefully examined both the record and the “potential
appealable issues” that Defendant’s counsel dutifully raises. Id. And after doing so,
we agree with Defendant’s counsel that “there are no non-frivolous issues upon
which [Defendant] has a basis for appeal.” Id.As to the illegal re-entry sentence, the district court committed no procedural
error when fashioning Defendant’s forty-five-month sentence. Under a stipulated
plea, the district court properly calculated Defendant’s sentencing range to be 46–57
months’ imprisonment under the United States Sentencing Guidelines
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(“Guidelines”). 1 Without a two level reduction contemplated by the stipulated plea,
the parties agree that the district court properly calculated the applicable Guidelines
range to be 57–71 months’ imprisonment. See United States v. Sanchez-Leon, 764
F.3d 1248, 1261 (10th Cir. 2014) (“Procedural error includes ‘failing to calculate (or
improperly calculating) the Guidelines range . . . .’” (quoting Gall v. United States,
552 U.S. 38, 51 (2007))). The sentencing transcript expressly demonstrates that the
district court did not view that range as mandatory. See id. (“Procedural error
includes . . . ‘treating the Guidelines as mandatory . . . .’” (quoting Gall, 552 U.S. at
51)). At Defendant’s request, the district court rejected the stipulated plea and
assured Defendant that he would be better off apart from the plea agreement.
Consistent with that assurance, the district court varied downward from the
Guidelines range and sentenced Defendant to forty-five months’ imprisonment;
twelve months less than the applicable Guidelines range and one month less than the
range contemplated by the stipulated plea.
Further, the district court expressly considered the 18 U.S.C. § 3553(a)
sentencing factors and refrained from relying on any clearly erroneous facts when it
sentenced Defendant to a sentence below the low-end of the Guidelines range. See
id. (“Procedural error includes . . . ‘failing to consider the § 3553(a) factors [and]
selecting a sentence based on clearly erroneous facts . . . .’” (quoting Gall, 552 U.S.
at 51)). And finally, the district court considered and rejected Defendant’s arguments
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This calculation included a three level reduction for acceptance of
responsibility and an additional two level reduction pursuant to the plea agreement.
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for a greater downward variance from that below-Guidelines sentence, the most
notable of which was based on Defendant’s disagreement on policy grounds with the
applicable Guideline from which his sentencing range stemmed. See id. (“Procedural
error includes . . . ‘failing to adequately explain the chosen sentence . . . .’” (quoting
Gall, 552 U.S. at 51)); id. at 1262 (observing that a district court adequately explains
the chosen sentence only when it “consider[s] the parties’ arguments” (quoting Rita
v. United States, 551 U.S. 338, 356 (2007))).
Defendant’s sentence is also substantively reasonable. A sentence below or
within the applicable Guidelines range is entitled to a “rebuttable presumption of
[substantive] reasonableness” on appeal. United States v. Balbin-Mesa, 643 F.3d
783, 788 (10th Cir. 2011). And that “presumption of reasonableness holds true even
if the Guideline at issue arguably contains serious flaws or otherwise lacks an
empirical basis.” United States v. Wireman, 849 F.3d 956, 964 (10th Cir. 2017)
(emphasis in original) (internal quotation marks, citation, and alteration omitted).
Thus, Defendant’s belief that his sentence is too long based on his policy
disagreement with the Guidelines is insufficient standing alone to render his 45-
month sentence substantively unreasonable. Even if that policy-based argument is
“quite forceful,” United States v. Regan, 627 F.3d 1348, 1354 (10th Cir. 2010),
Defendant can rebut the presumption of reasonableness on appeal only “by
demonstrating [that] his sentence is unreasonable when viewed in light of the
§ 3553(a) factors.” United States v. Grigsby, 749 F.3d 908, 910 (10th Cir. 2014).
But none of the § 3553(a) factors are so forceful as to rebut that presumption.
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Indeed, we recognize the district court spoke on each § 3553(a) factors and
noted Defendant’s history of illegal re-entry, prior charges of harboring aliens, past
violations of his supervised release, and frequently recurring nature of his misconduct
in describing the basis for the sentence. See 18 U.S.C. § 3553. The sentencing
transcript confirms that the district court also recognized Defendant’s policy
argument and its own assurance regarding the rejected stipulated plea in granting a
downward variance from the Guidelines. We discern no abuse of discretion in that
rationale. See United States v. DeRusse, 859 F.3d 1232, 1236 (10th Cir. 2017)
(observing that we review a sentence for substantive reasonableness “under a
deferential abuse-of-discretion standard” (citation omitted)).
As to the revocation matter, the district court committed no procedural error
when fashioning Defendant’s fourteen-month sentence. First, the district court
properly calculated Defendant’s applicable Guidelines range to be 8–14 months’
imprisonment. See Sanchez-Leon, 764 F.3d at 1261. The sentencing transcript again
confirms that the district court did not view that range as mandatory. See id. Finally,
the district court incorporated by reference the entirety of the original sentencing
proceeding for the revocation matter and specifically acknowledged the § 3553(a)
factors.
Defendant’s revocation sentence is also substantively reasonable. The district
court imposed a presumptively reasonable, within-Guidelines sentence of fourteen
months’ imprisonment, to be served consecutively with the illegal re-entry sentence.
See Balbin-Mesa, 643 F.3d at 788. Consistent with the above reasoning, none of the
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§ 3553 (a) factors are so forceful as to rebut that presumption of reasonableness
herein. Further, it is well-established that “sentencing a defendant to consecutive
sentences following the revocation of supervised release is not unreasonable.”
United States v. Rodriguez-Quintanilla, 442 F.3d 1254, 1257 (10th Cir. 2006).
Accordingly, we discern no abuse of discretion in the district court’s rationale as to
the reasonableness of the revocation sentence. See United States v. Ruby, 706 F.3d
1221, 1225 (10th Cir. 2013) (observing that we review a challenge to a revocation
sentence for abuse of discretion).
Defendant’s counsel was unable to think of any other potential appealable
issues besides the procedural and substantive reasonableness of Defendant’s
sentences. We are likewise unable to discern any issues after our own searching
review of the record. We therefore agree with Defendant’s counsel that Defendant’s
appeal is wholly frivolous, grant counsel’s motion to withdraw under Anders, and
dismiss this appeal.
Entered for the Court
Joel M. Carson III
Circuit Judge
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